Gerte v. Borough of Naugatuck
| Decision Date | 26 March 2021 |
| Docket Number | Civil No. 3:19cv1511 (JBA) |
| Court | U.S. District Court — District of Connecticut |
| Parties | MARC F. GERTE Plaintiff, v. BOROUGH OF NAUGATUCK, PETER BOSCO, ROBERT O'DONNELL, PAUL BERTOLA, BRIAN NEWMAN, STEVEN HUNT, and JEAN DOBBIN, Defendants. |
Plaintiff Marc Gerte brings this lawsuit against the Borough of Naugatuck, police officers Peter Bosco, Paul Bertola, Robert O'Donnell, Brian Newman, and Steven Hunt ("Municipal Defendants"), and Jean Dobbin. (Am. Compl. [Doc. # 27] at 1.) Plaintiff alleges that all Defendants deprived him of his property, his Labrador Retriever dog Jamie, in violation of the Fourteenth Amendment, the Fourth Amendment, and state common and statutory law.1 (See id. at 9-28.) Municipal Defendants filed a motion to dismiss all claims against them [Doc. # 28], as did Defendant Dobbin [Doc. # 31]. For the reasons that follow, Defendants' motions are granted in part and denied in part.
Plaintiff alleges that on June 18, 2016, he had a medical emergency in the Borough of Naugatuck caused by intoxication that required him to be transported to the local hospital for emergency medical treatment. At the time of the emergency, Plaintiff was with his companion animalJamie. (Am. Compl. ¶ 17.) Police Officer Robert O'Donnell took possession of Jamie and delivered her to Plaintiff's neighbor, Defendant Jean Dobbin.2 (Id. ¶ 20.) After his release from the hospital, Plaintiff contacted Naugatuck animal control to recover Jamie, but was told that his dog was not at the facility and that the facility had no information on the dog's whereabouts. (Id. ¶ 22.) Plaintiff alleges that he and his friends continued contacting animal control for information that would enable them to find and retrieve Jamie but that Defendants Bosco and O'Donnell told Plaintiff to cease contacting animal control and the police department or he would be arrested. (Id. ¶ 23.)
On September 26, 2016, one of Plaintiff's friends told him that he believed Jamie was with Defendant Dobbin based on a picture she posted on Facebook. (Id. ¶ 24.) Plaintiff went to see Defendant Dobbin at her office, but she refused to answer the door. (Id. ¶ 25.) Defendant Officer Bertola soon arrived at the scene, and Defendant Dobbin admitted to having Jamie but refused to return her to Plaintiff. (Id.) Defendant Bertola refused to assist Plaintiff in reclaiming possession of Jamie. (Id.) Plaintiff subsequently contacted Defendant Officers Newman and Hunt at the police department for assistance in recovering Jamie, but they too refused to take any steps to assist him or allow him to file criminal charges. (Id. ¶ 26.)
On October 11, 2016, Plaintiff filed a complaint and application for a temporary restraining order with the State of Connecticut Superior Court, Docket No. CV 16-5018099, against Dobbin, which was subsequently refiled as a writ of replevin on December 2, 2016. (Mem. of Decision, Ex. D to Am. Compl. [Doc. # 27-4] at 1.) The state superior court conducted a hearing on December 19 and 20, 2016 and granted Plaintiff's writ, finding that "the plaintiff has clearly demonstrated that he is the rightful owner of the dog, Jamie Leeand that the defendant has wrongfully detained the dog." (Id. at 6) As a result, Plaintiff was entitled to immediate possession of Jamie. (Id.)
Plaintiff now brings this federal lawsuit against Municipal Defendants and Defendant Dobbin alleging deprivation of rights under federal and state laws. Municipal Defendants move to dismiss all claims for failure to state a claim upon which relief can be granted. (Municipal Mot. to Dismiss [Doc. # 28] at 1.) Defendant Dobbin moves to dismiss all claims against her for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. (Dobbin's Mot. to Dismiss [Doc. # 31 at 1.)
When evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the Court must determine whether the complaint "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face,'" Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)), i.e. "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. A plaintiff satisfies this standard when he or she "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 677.
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Id. (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996)). In evaluating a motion to dismiss for lack of subject matter jurisdiction, the Court accepts all facts alleged in the complaint as true and make all reasonable inferences in favor of the plaintiff. Natural Resources Defense Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006).
Municipal Defendants maintain that Plaintiff's constitutional claims brought pursuant to 42 U.S.C. § 1983 () must be dismissed because 1) he failed to allege that Municipal Defendants acted under color of law and 2) no constitutional deprivation occurred as a result of any action by Municipal Defendants. (Municipal Mem. in Support of Mot. to Dismiss [Doc. # 28-1] at 11-13.) Defendant Dobbin argues that she is a private person, not a state actor, and therefore cannot be liable for any constitutional violations. (See Dobbin Mem. in Support of Mot. to Dismiss [Doc. # 31-1] at 5.)
a. State Action
Section 1983 "create[s] a species of tort liability for the deprivation of any rights, privileges or immunities secured by the constitution." Manuel v. City of Joliet, Ill., 137 S.Ct. 911, 916 (2017). "In order to maintain a section 1983 action, two essential elements must be present: (1) the conduct complained of must have been committed by a person acting under color of state law; and (2) the conduct complained of must have deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). "The Supreme Court has broadly interpreted the color of law requirement, concluding that 'misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken under color of state law.'" U.S. v. Giordano, 442 F.3d 30, 42 (2d Cir. 2006) (quoting United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999)). But "the fact that someone holds an office or otherwise exercises power under state law does not mean, of course, that any wrong that person commits is 'under the color of law.'" Id. at 43. In order to survive a motion to dismiss, a plaintiff bringing a § 1983 claim therefore must allege that the defendant engaged in conduct that invoked the real or apparent powerof the state. See Claudio v. Sawyer, 409 Fed. App'x 464, 466 (2d Cir. 2011). Relatedly, a plaintiff must allege that the defendant was personally involved in bringing about the alleged constitutional deprivation of rights. Gronowski v. Spencer, 424 F.3d 285, 293 (2d Cir. 2005).
Municipal Defendants characterize Plaintiff's complaint as regarding "a personal civil dispute between the plaintiff and co-defendant Dobbin as to possession and ownership of the dog, Jamie" and maintain that the allegations do not implicate the actions of Municipal Defendants. (Def.'s Mot. at 11.) But the pleadings belie such a claim. Plaintiff alleges that Defendant O'Donnell arrived first at the scene of the emergency, took lawful, temporary possession of the dog, and transferred it to Defendant Dobbin pursuant to his authority and consistent with the official policy of the Naugatuck Police Department. (Am. Compl. ¶ 29-30; Hearing Tr., Ex. C to Am. Compl. [Doc. # 27-3] at 2.) Plaintiff alleges that when he contacted Naugatuck Police, Defendants Bosco and O'Donnell told him to "cease contacting Animal Control and the police department or he would be arrested." (Id. ¶ 54.) When Plaintiff discovered that Jamie was with Defendant Dobbin, Defendant Bertola refused to return the dog to Plaintiff. (Id. ¶ 33.) Defendant Bertola contacted Defendants Hunt and Newman, who both held supervisory positions, regarding the incident, but they refused to take any steps to return his dog to him. (Id. at ¶ 34.) Defendant Bertola then instructed Plaintiff to "present himself at the police department headquarters at 8:30 AM the following day, September 27, 2016, with proper paperwork for his dog." (Id. ¶ 68.) Although Plaintiff did present the proper paperwork, Municipal Defendants refused to return Jamie to Plaintiff or accept a criminal complaint against Defendant Dobbin for taking Jamie. (Id.)
Simply put, Plaintiff does not allege a mere personal dispute between himself and Defendant Dobbin. Plaintiff alleges that the Naugatuck Police Department maintained anofficial policy regarding the safekeeping of animals like Jamie, that Defendant O'Donnell took Jamie pursuant to that authority, and that Defendants Bertola, Hunt, and Newman, in their capacities as police officers, refused to return Jamie to Plaintiff. Further, in response to Plaintiff's various complaints to Borough Police, Defendant...
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